Here is my most recent comment on the conservative gun-idolater thread that has inspired many of my recent posts, in response to the somewhat correct allegation that it has devolved into nothing more than a shouting match:
A shouting match between fact and reason, clearly stated, on the one hand, and blind fanatical dogma, repeated endlessly despite being debunked (e.g., the constant insistence that any and all gun regulation is by definition an infringement of your Second Amendment rights, despite a universal rejection of that notion by Constitutional scholars, including uber-conservaitve Justice Scalia, as quoted above), on the other. You live in a world of fabrication in service to crude prejudices and bigotries and belligerence toward the world, and abhor those who stand for reason and for humanity. You invent your own caricature of the law and of the Constitution, your own caricature of history, your own reality, and then laugh like jackals when confronted by the reality you have simply defined out of existence.
You can persist, pretend, and posture to your heart’s content; it will only serve to convince those who are already as lost as you in your own shared arbitrary ideological delusions that the idols of your tribe are undisputable absolute truths, and to convince those who are not that you are yet another dangerous, violent cult posing as a political ideology. The fact that you are a large and well-established cult does not make you a benign one, or even one of mixed value. You are organized ignorance and brutality, a familiar perennial of human history, always popping up anew, with one shared constant: Rabid anti-intellectualism. You share that with the Inquisition, the Nazis, the Soviets, the Khmer Rouge, and Islamic terrorists, to name a few. You are on the side of ignorance and tribalistic ideological brutality, in opposition to reason and humanity.
The most telling distinction is that, by your own account, precisely those professions that methodically gather, verify, analyze and contemplate information are the ones you dismiss as bastions of liberal bias, without ever addressing why that would be so. Why would there be a positive correlation between the professional processing of fact and logic, on the one hand, and liberalism, on the other? The answer, while complex, is rooted in the fact that active and curious minds, immersed in observation and thought and the use of disciplined reason, tend to arrive at conclusions diametrically opposed to your dogma, because your dogma stands for the opposite of such modes of thought.
You stand in opposition to fact and reason and a commitment to humanity, which is why you simply ignore and dismiss the avalanche of statistics debunking the obviously absurd notion that there is no connection between our overabundance and overly easy access to instruments of deadly violence in comparison to other developed nations, and our extraordinarily high rates of deadly violence in comparison to other developed nations.
And the fact that there is a statistical correlation between laxity of gun laws internationally and homicide rates? The fact that the overwhelming majority of guns used in the commission of crimes in the US are put into circulation by being bought in those states with the laxest regulations? The fact that for every use of a gun in self-defense, one is used multiple times in a suicide, multiple times in a crime of passion, multiple times in an accidental shooting; the fact that a gun in the home INCREASES the likelihood of a member of that householder dying of a gun-inflicted wound; the fact that a gun-owner is more likely to be shot than a non-gun-owner, are all, to you, “spurious statistics” that you dismiss with the casual misuse of the word, thus never having to consider or acknowledge inconvenient realities. That’s not rational. It’s the intentional preservation of ignorance.
No, the problem is not just, or even primarily, a function of our gun culture; it is, more broadly, a function of extreme individualism, of the reactive rather than proactive orientation to our shared existence that you impose on us, of the social disintegration that you confuse for “liberty.” Our Founding Fathers were committed to the construction of a wise and just society; you are committed to its destruction.
The fact that you are certain that the Constitution verifies every last ideological conviction you happen to hold, and that therefore the thousands of legal and constitutional scholars over the last two hundred years who would and have argued subtle and complex points about that Constitution and how to interpret it are all wrong, are all irrelevant, because you know the one absolute truth, is the voice of ignorance, the voice of fanaticism, the voice of irrationality. You argue legal positions that are dismissed or challenged by almost all legal scholars, economic positions that are dismissed or challenged by almost all professional economists, historical positions that are dismissed or challenged by almost all professional historians, and not only commit the intellectual error of clinging to those positions as favored by reason, but insist that they are incontrovertible absolute truths. That is not the voice of reason, but rather of irrationality.
Of course you couldn’t stop engaging me, because you can’t stand to leave fact and reason disinterred and visible to all any more than I can stand to let you shovel unchallenged the dirt of your ignorance and barbarism over it once again. You have to bury the facts; you have to bury the rational arguments; you have to bury any authentic understanding of human history or economics or sociology; you have to bury any humane orientation to the world, because none of those supports your blind ideological fanaticisms.
I. The Habits, Methodologies and Procedures Which Govern Our Existence
Political activism tends to focus on issues and candidates, advocating for particular positions on particular issues, which cluster into and are framed by competing ideologies, and campaigning for candidates who, by and large, represent those competing ideologies. This system is the product of an evolutionary process (discussed at more length in section II)), and is certainly more functional than many that have historically preceded it or exist elsewhere. But it is not a perfected system (no system is), and some portion of our advocacy efforts should be dedicated to the challenge of consciously refining it.
In some other facets of life, particularly scholarship and law, procedures and methodologies have evolved which increase the role of reason in human belief formation and decision-making. Scientific methodology is a discipline which reduces error and increases accuracy. It has proven to be an acceleratingly robust technique for exploring the nature of the world and universe around and within us. Legal procedure is a discipline which assesses the accuracy of alleged facts and applies complex decision-making rules to them. It has proven to be a more accurate tool for pursuing just outcomes than the less rationalized procedures which preceded it, such as “trial by ordeal” or the purely idiosyncratic judgment of rulers or magistrates.
One of the challenges facing humanity is to refine and extend such disciplines. Though our electoral system is an example of such continuing refinement and extension, the context of our electoral system still involves a competition of largely arbitrary and underexamined ideological convictions. The products of scientific and legal methodologies are brought in haphazardly, and with only marginal influence. Popular opinions are formed irrationally, and voting choices are manipulated by well-funded marketing techniques, turning politics into a competition of cynical strategies favoring concentrated capital interests, and leading to dysfunctional outcomes.
It is a well-known and well-evidenced conclusion of cognitive science that human beings are not, by and large, persuaded by logical arguments and reliable evidence as much as by emotionally appealing messages that resonate with their already internalized frames and narratives. Some people misinterpret this to conclude that it is impossible to increase the salience of reason in popular political decision-making. But history demonstrates the error of such a conclusion: Scientific methodology, legal procedure, and constitutional democratic forms of government have all developed and gained prominence in the modern era, despite human irrationality.
II. The Lathe On Which We Spin…
The explanation for this paradox can be found in John Maynard Keynes’ quip that people “will do the rational thing, but only after exploring all other alternatives.” The archetype of this dynamic can be found in nature, in biological and ecological evolution, where creatures large and small, few of which are generally considered to be “rational,” evolve in highly rational ways, embodying strategies for reproductive success (and survival in order to facilitate it) that we, for all of our impressive human consciousness, can only mimic and emulate in our own intentional social institutions and technologies.
In biological evolution, this occurs through genes, which reproduce, occasionally mutate, compete for reproductive success, and thus evolve. In cultural evolution, this occurs through “memes” (cognitions), which reproduce (are communicated), frequently mutate (change in the process of communication by mixing with other memes to form new memes or being are refined or altered or misinterpreted by those to whom they are communicated), compete for reproductive success (compete with mutually exclusive beliefs, or compete with other technologies, or compete for limited cerebral capacity), and thus evolve. In both cases, packets of information reproduce, mutate, compete for reproductive success, and thus evolve. (For more in-depth explorations of this evolutionary ecology of human social institutional and technological systems, see, e.g., The Evolutionary Ecology of Social Institutions, The Fractal Geometry of Social Change, The Evolutionary Ecology of Human Technology, The Fractal Geometry of Law (and Government), plus several others in the first box at Catalogue of Selected Posts).
Cultural evolution isn’t inherently benign. Reproductive success doesn’t automatically favor those memes most conducive to human happiness and welfare. More powerful weapons prevail over less powerful weapons; conquerors spread their memes more prolifically than pacifists; those who mine natural resources more rapidly (even if unsustainably rapidly) prevail more surely; aggressive, predatory societies overrun others that may be laden with beautiful and life affirming memes that simply don’t survive the brutality of our existence. One role for our conscious participation is to counterbalance these dysfunctional aspects of our underlying cultural evolutionary processes.
But neither is cultural evolution inherently malignant. Reproductive success doesn’t automatically disfavor those memes and paradigms most conducive to human happiness and welfare. A social entity characterized by strong internal cooperation will tend to prevail over a social entity characterized by weak internal cooperation. The robust production of prosperity tends to prevail over more sluggish economic systems. Broader and deeper systems of cooperation prevail over narrower and shallower systems of cooperation. Political and economic liberty, in which most or all people are robust participants in their own governance and in a production of wealth from which they benefit in proportion to the value of their contribution, tends to prevail over political and economic centralization, in which human energy and enterprise is less fully tapped and channeled.
This combined, almost paradoxical, evolutionarily favored status of both liberty and cooperation is precisely why the movement I am referring to is not just “the politics of reason,” but “the politics of reason and goodwill.” Decades ago, in an experiment by Robert Axelrod, competing computer programs using strategies of “cooperation” and “defection” in bilateral, repeated “prisoners’ dilemma” games (see Collective Action (and Time Horizon) Problems) demonstrated that the best strategy in a world in which cooperation yields collective benefits, but not cooperating is always better for the person who doesn’t cooperate, is first to cooperate (show goodwill), and then respond to the other in kind (continue to cooperate if they do, but not if they don’t). This is a mathematical demonstration of what we all intuitively know (or should know) to be true: Goodwill benefits us all.
That’s at least one reason why the evolutionary process I describe below, entering into the modern era, has produced notions of human rights and natural rights and individual rights, and notions of egalitarianism and fairness and mutual responsibility, that many of us treasure, and that all of us benefit from. The world is a better place not only when we are reasonable people, but also when we act with goodwill toward one another. And even if the distribution of individual reasonableness and goodwill is not something that is particularly tractable by organized efforts in social movements, the salience of reasonableness and goodwill might be (see below for an explanation of this distinction).
III. …And That We Ourselves Are Spinning.
Biological evolution is, in a sense, a passive process. The members of evolving species do not intentionally participate in the evolutionary process that creates them, identifying evolutionary goals and consciously pursuing them. They merely are more or less prolific reproducers, and so carry genes that are more or less well-represented in subsequent generations. But the human cultural echo of this evolutionary process plays out through our cognitions, which are the substance of our consciousness. It is the result of what we choose to believe, and the result of how successfully we advocate or promote or market our beliefs or innovations. We are active and conscious participants in our own cultural evolution.
The degree to which we consciously guide and channel this process in service to humanity is a function of how far-sighted we are in our goals, and how inclusive we are in our identifications. Genetic evolution occurs through the pursuit of very immediate, short-sighted goals: Surviving long enough to mate, mating, and ensuring in one way or another that some of your progeny survive to mate as well. Cultural evolution occurs through the pursuit of these as well (through the reproduction of memes that serve these goals), plus slightly less immediate and short-sighted goals, such as financial security or prosperity and satisfaction of various needs and desires, and conscious identification with genetically somewhat dissimilar others, such as co-members of a race, a tribe, a nation or a religious community. (Often, there is an element of marginal genetic similarity in these identifications, due to how they are historically produced.) Politics consists by and large of a struggle over how and if and how far to extend both our time horizon and our identification, and how ambitious or modest our collective goals should be.
This struggle occurs on an issue-by-issue, candidate-by-candidate basis, framed by competing comprehensive ideologies. We tend to emphasize the particular battles, and “recognize” that it is futile to try to win an argument over “which” ideology is superior. (Even so, the most zealous among us –myself included, but in a modified way explained in this essay and others like it– engage ceaselessly in debates over the relative merits of competing ideologies.)
The tendency to “duke it out” on an issue-by-issue, candidate-by-candidate basis comes at the cost of shortening our time horizons and narrowing our identifications, because issues attract our attention in proportion to their urgency and immediacy, elections are immediate and urgent contests, identifications in these struggles focus on the coalition of factions advocating particular positions within it, and, most importantly, the logic of political competition drives the most politically active among us into an almost exclusive focus on political strategies and tactics. The last dynamic strongly favors appealing to our basest and least far-sighted and least-imaginative inclinations as a polity, because these are the easiest to appeal to, and the most successful fulcrums on which to ply our political efforts.
If our evolutionarily determined habit of focusing on immediate issues and immediate candidates in service to immediate concerns and immediate desires does not best serve the challenge of being more conscious and inclusive participants in our own cultural evolution; and if it is futile to try, instead, to move the struggle to the level of a national debate over which substantive comprehensive ideology to embrace; then what is the alternative?
The alternative is diverting some portion of our time and attention and resources from both the issue-by-issue, candidate-by-candidate political struggle, andthe futile substantive ideological debate that envelopes and undergirds it, to an effort to transcend both by developing and investing in methodologies which systematically favor reason and goodwill in our personal and popular political decision-making process. To accomplish this, we need to find a foundation on which to build such a methodology on which most people, across ideological lines, can agree to, and which appeals to most people’s underlying frames and narratives, as well as recognizes the limited degree to which most people are willing to invest time and energy in our political processes.
Extremists of all stripes will tend to reject any such foundation that is proposed, correctly certain that it would undermine their ideological convictions and goals. But, though extremists dominate message boards and public attention, most people are not extremists. Most people are relatively moderate and pragmatic people who just want to be able to participate marginally, without investing too much time and energy, in our self-governance in a way which is both gratifying and productive. Many, of course, don’t want to do more than vote, but even those form their political opinions and electoral choices by means of a diffuse engagement with others around them and with various media of communications.
The challenge is to find, rally, and motivate those who both are or wish to be highly politically engaged, and who are interested in exploring the possibility of doing fundamentally better than we are now in moving the state, nation, and world in the direction of ever-increasing salience of reason and goodwill in the formation of our public policies, and to mobilize these activists in the design and implementation of a movement which accomplishes that goal. Obviously, any success would be marginal, and the world would continue much as it has. But even just marginal success in such an endeavor could have truly revolutionary implications over the course of time.
IV. The Proposal
I have already outlined my proposal (which I call, alternatively, “The Politics of Reason and Goodwill,” or “Transcendental Politics,” or “Holistic Politics”) in several essays (see, e.g,. A Proposal, The Politics of Reason & Goodwill, simplified, How to make a kinder and more reasonable world, and Transcendental Politics; plus dozens of others in the second box at Catalogue of Selected Posts). I’ll just summarize it very briefly here.
The social movement I envision is, by necessity, a non-partisan social movement which emphasizes the procedures by which we arrive at our beliefs, conclusions, policy positions, and electoral choices (which I’ll refer to from here on out as “political memes”), rather than the specific, substantial political memes themselves. It is a movement that is dedicated to not advocating for progressive or conservative ideologies or policies or candidates, but rather for a commitment to reason and goodwill and to the development of procedures and methodologies which systematically favor them.
This may seem to run up against the cognitive science reality that people are not primarily persuaded by reason in the formation of their political memes, and certainly the most fanatical and extreme will not be amenable to any suggestion to make any movement of any kind in any direction. But this movement does not depend on people in general changing their habit of political meme formation. Rather, it depends, first, on a dedicated group of people implementing the three components summarized below (and elaborated on at length in the other essays I linked to), and, secondly, on a significant number of people agreeing in principal only to strive to be reasonable people of goodwill. That second requisite is not a change in how people form their cognitive landscapes, but rather an appeal to existing frames and narratives, since most Americans, I would argue, identify themselves as, and wish to be, reasonable people of goodwill.
It’s very important not to be excessively distracted by the highly visible and vocal minority who clearly are too committed to irrationality and belligerence to even contemplate making such a commitment. In the end, any social movement that aspires to increase the salience of reason and goodwill in the formation of public policy, while it might continue to try and hope to gradually convert some of them, has to focus more on simply marginalizing the most irrational and belligerent among us, and rendering them outnumbered and de-fanged by a movement that just leaves them behind (in terms of their political and cultural influence, not in terms of our shared commitment to their well-being and the facilitation of their productive participation in society).
This movement, which I’ll refer to here as “PRG” (short for “Politics of Reason and Goodwill”), requires two very difficult, interrelated steps for adherents (that is, activists working to advance this social movement) to commit to, in order to realize the social step forward that the movement aspires toward: 1) In the context of the movement (though not in political activities pursued outside of the movement), advocacy for specific substantive positions, specific ideological convictions, specific candidates, and, in general, specific substantive political memes, must be suspended. PRG advocates for a commitment to an ideal that transcends ideology and a procedure for realizing that ideal, sincerely and with assiduous integrity agreeing not to displace that ideal or that procedure with current substantive certainties held by any adherents. And, 2) The sincere humility to realize that a procedure which accomplishes this to any meaningful degree is preferable to such substantive certainties currently held, because our current substantive certainties may or may not be what reason and goodwill, assiduously adhered to, would actually have led to, and we should prefer what a disciplined process suggests is most in accord with reason and goodwill over what we more haphazardly assume is most in accord with reason and goodwill.
The core political meme of this movement, in fact, is the meme that we are better served by disciplines and processes which systematically favor reason and goodwill than by our current ideologies that assume they are most informed by reason and goodwill. And, just as those who have practiced and implicitly and explicitly advocated for scientific methodology, rule of law, and democratic and constitutional governmental processes have fought uphill battles to establish them as central features of our shared cognitive and institutional landscape, assisted by the evolutionarily favored utility of these disciplines, so too is this extension of that logic evolutionarily favored by its utility and implementable, over time, through our relentless and passionate advocacy and practice.
PRG consists of three components: 1) The creation of a comprehensive data base or web portal which makes easily accessible all arguments which purport to apply reason to evidence in service to human welfare, along with citations by which to verify the reliability or accuracy of the evidence utilized (see “Component 1″ of A Proposal for a more complete and extensive description); 2) The creation of an enterprise which disseminates the message, in emotionally appealing ways which communicate directly to existing frames and narratives, that we are better off, both individually and collectively, when we strive to be reasonable people of goodwill (see Component II of A Proposal and Meta-messaging with Frames and Narratives for more complete and extensive descriptions), and 3) The establishment of a network of community organizations, which leverage existing community organizations (e.g., PTAs, HOAs, Kiwanis, Rotary Club, local churches and other religious institutions, park districts, etc.), to create a forum in which participants agree to strive to be reasonable people of goodwill, to consider all points of view and arguments with an open mind, to be civil, and to improve the strength and solidarity of our local communities and of our nation (see Component III of A Proposal and Community Action Groups (CAGs) & Network (CAN) for a more complete and extensive description).
The supposition is not that most people would avail themselves of the internet portal or spend significantly more time comparing arguments and counterarguments surrounding various policy issues, or that most people would attend the community meetings or participate on the on-line network, or that most people would change their habits in any visible or significant way. That would not be realistic. Rather, the hope is that this would create a new center of gravity, a new source of legitimacy for the concept of making decisions on the basis of reason and goodwill, a new nucleus from which a marginal increase in the number of people who take marginal steps in the direction of thinking and acting in accord with this ideal can form a source of information and inspiration for the many who make no change in their lives whatsoever. Few of us are scientists, but most of us rely in one way or another on science.
Think tanks and policy institutes are in some respects the prototype for Component I, but always lost their popular legitimacy by failing to be popularly accessible and popularly comprised institutions. All are seen, rightly or wrongly, as having been co-opted by a particular ideology. But, in PRG, the think tank is all of us, the arguments considered are all of them. And it does not stand alone, like an ivory tower out of reach, but in the center of a community, where it can be utilized and discussed by those ordinary people inclined to do so. Even if very few ever avail themselves of those resources (the portal and the community organizations), others (moderate others who are not lost to an impenetrable fanaticism) will be more inclined to look to those who do as relatively reliable sources of information. And those who do avail themselves of these recourses will be those who, both by predisposition and by the effects of utilizing these resources, will tend to have more moderate, better informed, better reasoned, more humane positions on social and political issues.
History is comprised of innovations, both humble and bold. Many such innovations are social institutional, and some have had enormous and lasting effects on our cultural evolution. The invention of money, of legal systems, of our own Constitution and national system of government, are all examples. Some technological innovations dovetail with these, or form the basis of social institutional innovations of their own: The computer, the internet, social media, have developed in ways which have created new opportunities and new dimensions of possibilities yet to be fully explored. PRG, or something similar to it, would be precisely the way to leverage these developments, and explore these possibilities.
I sincerely and fervantly believe that a dedicated cadre of people working dilligently to design and implement this plan, or a plan similar to it, can and almost inevitably would have a dramatic effect, over time, in moving our state, nation, and world gradually but significantly in the direction of reason and goodwill, in the direction of being wiser, more foresighted, more cooperative, more life-affirming, and more humane. I hope all who read this will join me in this effort, and will share it widely in the hope that others join us as well.
One of the great paradoxes of American history and society is that we are simultaneously a country founded by religious zealots committed to the promotion of religious zealotry, and a country established on Enlightenment principles committed to the creation and preservation of a secular Constitutional Republic. In an honest debate over which direction best serves current and future generations of Americans and humanity, I personally believe that there is no contest: Religious fanaticism and Theocracy are the authors of untold horrors in the world, and it is not a model to be emulated.
It’s true, of course, that some secular “religions” have produced the same horrible outcomes (Bolshevism is the iconic example), which leads to the wise conclusion that it is not the presence or absence of some conceptualization of the divine that renders an ideology destructive to human welfare, but rather merely an aura of absolutism, a belief that the complex and subtle reality of the world has been perfectly distilled into an easily grasped human ideology, and that no further discussion is required. It is not religion that is at fault, but rather blind dogma, absolute faith in some reductionist representation of how the world works and how we should interface with it.
Identifying this problem is easier than solving it. Humans have no choice but to conceptualize the complex and subtle reality of which we are a part in manageable ways, to reduce it to images and forms and packages that we can understand and work with. Our most sublime intellectual achievements do this as surely as our most shallow superstitions. But what distinguishes our most sublime intellectual achievements is that they are products of a process through which our imaginations and our intellects are disciplined and evolve, whereas our most shallow superstitions are ossified products of ancient imaginations entrenched in our consciousness and as insulated as possible from the continuing lathe of reason and imagination. One modality is based on skepticism, on critical thinking, and the other on Faith, on blind acceptance of given “truths.”
(The same holds true for modern dogmas, sometimes intellectual and frequently political ideological, as for archaic superstitions: The greater the extent to which adherents dogmatically believe substantive tenets, the more in the mode of “religious fanaticism” they are; the more they commit to on-going procedures –facilitated by wise uncertainty– which favor reason and humanity, the more they are contributing to the progress of both human consciousness and the social institutional and technological landscape that emanates from it.)
The dilemma in America is not that we are in a debate over these two modalities of thought, but rather that one of these two modalities precludes such a debate. It is not possible to engage in a debate with blind dogma insulated from reason and information. But worse yet, not only is such a debate precluded, but those who preclude it play a shell game with these two very different modalities of thought, turning the U.S. Constitution, which is so much in the tradition of reasoned engagement with the complex and subtle world we live in, into a quasi-sacred document, stripped of its actual subtlety and wisdom, and selectively understood and interpreted in service to the blind dogma that they favor.
They claim to be champions of the Constitution, while in reality being its most virulent enemies. What the Constitution represents first and foremost is rule of law, and what rule of law is first and foremost is a procedural discipline, a commitment to making decisions about legality through processes established by both the Constitution and by the challenge of implementing it in a real world more complex than any such document can fully anticipate.
But rather than accept that we have a real Constitution, written by mere human beings in a language full of ambiguities and imprecisions and in a time which framed their understandings and emphases, a document that Constitutional Scholars debate and study and spend dedicated lifetimes trying to fully understand, in the context of an ever-changing world, these would-be theocrats insist that only their superficial and frequently poorly informed interpretations, sometimes completely at odds with any literal interpretation of the document itself, must prevail.
If one points out to them, as I have sometimes done, that Article I, Section 8, Clause 1 of the U.S. Constitution states that “Congress shall have the power to lay and collect taxes…to pay for the general welfare,” and that that is a rather broad power that, if literally interpreted, means that there is no limitation on what Congress can tax and spend in service to, as long as Congress can make a case that it serves the general welfare, they answer that there must be limits on it, because, after all, isn’t such a limitation what their dogma insists upon? They love the Constitution until it blatantly contradicts their ideology, at which point it is, in their view, the Constitution rather than their ideology which must yield. That is the very essence of anti-Constitutionalism.
(The limitation on the tax-and-spend power of that clause is, of course, that if voters don’t like the way Congress is exercising it, voters can fire them and hire representatives who do so more in accord with their wishes. The Constitution, drafted to strengthen rather than weaken the federal government, was designed, as explicitly elaborated on in The Federalist Papers, to overcome the collective action problems rampant under the Articles of Confederation that preceded it. It’s no accident that the Founding Fathers included this ample power to tax and spend in service to the general welfare.)
Of course, as many point out, well-reasoned and well-informed arguments fall on deaf ears, because people in general, and religious and quasi-religious fanatics in particular, do not form their opinions according to the dictates of reason applied to evidence –or in service to humanity rather than to their own national, racial, class, ethnic, etc., in-groups– but rather on the basis of emotional appeals to the frames and narratives which form our consciousness and our identities. When I argue that we should all strive to be reasonable people of goodwill (toward all humanity), and others respond that that won’t work because there are those who lack reason and lack such goodwill, I reply that the irrationality and belligerence (toward humanity) of others does not imply that we must be irrational and belligerent (toward humanity) as well.
I emphasize “toward humanity” because the misconception is common, among both those who tend to agree with me on substantive positions and those who tend to disagree, that goodwill toward humanity precludes hurting the feelings of those who preach ideologies or behave in ways which are antagonistic to humanity. It doesn’t. (Those on the right embrace this fallacy to discredit those challenging the substance of their ideology, by claiming that anyone who criticizes their ideology is not acting with goodwill toward humanity; those on the left embrace this fallacy to discredit the challenge to their preference for righteous rage over effective advocacy, arguing that since goodwill toward belligerent fanatics is ineffective the ideal of goodwill toward humanity is irrelevant to political discourse.)
Goodwill toward humanity does not mean that you cannot intervene militarily to stop a genocide, even though shooting at people (in a military action to stop a genocide) is not really the best expression of goodwill toward them personally. Nor does goodwill toward humanity preclude one from hurting the feelings of someone preaching some hateful ideology by sharply criticizing their ideology, and doing so in terms which are logically and emotionally compelling and thus, to them, offensive. To the contrary, goodwill toward humanity requires it, not gratuitously, and not in service to one’s own emotional gratification, but rather in service to moving the zeitgeist gradually in a desired direction.
For those who believe that moving the zeitgeist in a desired direction is impossible, all I can say is: Glance back across the sweep of human history, and you will see that it has been done before, and is done constantly. Scientific methodology didn’t exist half a millennium ago, but has grown in prominence over that span of time, in large part due to human effort, and frequently against human resistance. That thread of history, in fact, is the archetype of what I’m advocating. We have, historically, increased the salience of reason and goodwill in human affairs, by developing scientific methodology and legal procedures, and by developing humanistic philosophies which identify the rights of individuals and the value of various forms of egalitarianism. Extending these historical processes is what Progressives should be most committed to. And, by that definition, all reasonable people of goodwill should be Progressives.
(I’m tempted to dump the word “Progressives,” though, because, of course, the ideology that goes by that name is not precisely the ideal ideology I have described. True “progressivism” would involve reducing the emphasis on precipitous substantive certainties, and increase the emphasis on ever-evolving procedural disciplines developed for the purpose of realizing an ever-evolving humanism.)
It’s true, of course, that merely making well-reasoned and well-evidenced arguments is not the primary way in which the zeitgeist changes. We think in frames and narratives, and it is through those frames and narratives that change occurs. But one frame which almost all modern Americans embrace is that they are reasonable people, that their beliefs are what are supported by reason and evidence, that in any debate between equally competent debaters, their point of view inevitably wins. Another frame common to almost all modern Americans is that each believes themself to be a person of goodwill, a person whose ideology is the ideology which best serves others. Few Americans explicitly applaud Scrooge before the transformation and condemn Scrooge after the transformation; almost all define themselves as being a reasonable person of goodwill.
One way to challenge these frames is to ply the lever of cognitive dissonance, to make the discrepancy between the narratives that people are subjectively applying to themselves and the narratives that they are “objectively” living as inescapable as possible. And that means not only throwing well-reasoned arguments in their face, but rather throwing in their face well-reasoned arguments that challenge not particular policy positions but, more importantly, their own fundamental identity.
The way in which I habitually do this is, in every conversation in which a blind and belligerent dogma is being favored, to ask the person favoring it if they would be willing to set aside for a moment our substantive disagreements and agree with me only that we should all strive to be reasonable people of goodwill working together in a complex and subtle world to do the best we can in service to humanity. Some leap to agree; many do not. But almost all recognize, on some level or another, that they can either agree with this premise or suffer the cognitive dissonance of realizing that they are unwilling to.
I strongly recommend that this one, simple commitment become our core ideological identity and the platform that we most consistently and relentlessly advocate. It is a position which most find difficult to denounce, and to which many who do not consider themselves “progressives” would gladly gravitate. It is the basis for all well-conceived progressive policies, the standard by which they should be measured, such that it is this ideal rather than anything else we currently believe that should hold sway. And it is a shared foundation to which we want to attract as many people as possible (from all across the ideological spectrum).
The catalyst for this essay was an exchange on Colorado Confluence’s Facebook page (http://www.facebook.com/ColoradoConfluence). The exchange captures much of what I’m talking about, and expands upon some of the ideas I’ve presented here, so I am reproducing it below. It started with my posting a link to this Economist article on the relationship between religion and politics in America (http://www.economist.com/node/21548964) accompanied by this comment from me:
A nice summary of the disingenuity of Santorum’s remark about people of faith being banished from the public square (which is both the opposite of the current reality, and not advocated by any mainstream public official past or present), and the complex relationship between faith and politics in America.A woman named Dina then commented “wow, drink the cool aid (sic) much?” This was my response:
One thing the article doesn’t note is the tension between the “Free Exercise” and “Establishment” clauses of the First Amendment: Government can neither inhibit nor promote any particular religion, which leaves a very narrow band between the two in which to operate.
Many religious zealots in America, for instance, don’t realize that, while it is unconstitutional for a school to promote or sponsor prayer on school grounds, it is also unconstitutional for schools to prohibit prayer on school grounds, as long as it is done in a manner which does not disrupt the normal functioning of the school and does not appear to carry the “imprimatur” of the school (e.g., does not use the school PA system, or occur as a part of a school event). It is, of course, the right balance…, except for theocrats who don’t want freedom of religion but rather a tyranny of their own religion.
For more on religion, see “Is Religion a Force for Good?” (http://coloradoconfluence.com/?p=742), “A Dialogue on Religion, Dogma, Imagination, and Conceptualization” (http://coloradoconfluence.com/?p=2452), “Do Deities Defecate?” (http://coloradoconfluence.com/?p=2504), and “Discourse, Diderot, and Deity” (http://coloradoconfluence.com/?p=1081).
Okay, I’ll bite. What Kool-Aid are we talking about? If we’re invoking cult leader Jim Jones and the mass suicide he orchestrated (which is where the term comes from), then it would make more sense to use it to refer to those who are defending dogmatic beliefs (particularly religious beliefs) against a commitment to a more open and moderate secularism. But such reversals of meaning, though ironic in the extreme, are also remarkably common.She then replied, “”‘socialism,’ ‘secularism,’ let’s call the whole thing off!” To which I responded:
“Secularism” and “Socialism” are not the same thing. Our Constitution essentially guarantees a secular form of government by not only guaranteeing to each the freedom to practice their own religion (“The Free Exercise Clause” of the First Amendment) but also prohibiting government from favoring any one religion over others (“The Establishment Clause” of the First Amendment). For an ideological faction whose adherents generally fancy themselves the defenders of the Constitution, it’s remarkable how eager some members of that faction are to disregard and undermine that very same Constitution in both letter and spirit.That got her goat! Here’s how she replied:
The word “socialism” has been applied very broadly, especially in service to a particular ideological agenda, to societies that are widely divergent in form. At one extreme are a group of societies that are characterized by autocratic, oligarchical governments that completely dismantle market economies and replace them with command economies. These have all been horrible failures. At the other extreme (in normal usage) are the “democratic socialist” countries such as some Scandinavian countries have at times been, and these have been by and large quite successful (robust economies, excellent quality of life, extensive individual rights, and far more equitable than average).
More generally, all modern developed nations are, in reality, a hybrid of robust market economies, popular sovereignty, large administrative states, a strong commitment to rule of law, and a thoroughly secular (non-religious) and civil (non-military) government. All nations that participated in the post-WWII economic boon were characterized by this combination of institutional qualities, bar none. To call them “socialism” would mean that the word “socialism” must be understood to encompass both a certain category of failed states, and the unique category of the most successful states in world history (i.e., all successful, fundamentally capitalist countries).
The point of using the word “socialism” to describe both is to obfuscate the fact that some of the states being so labelled comprise the entire set of modern prosperous, free nations on Earth, and to imply instead that all states so labelled actually belong to the set of failed states known by that label. In other words, it is an attempt to relabel all modern, prosperous, free nations as something other than what they are, and to pretend that a proposed extremist form that has never described any actual successful nation on Earth is what defines that category instead! It is a triumph of meaningless, cultish rhetoric over anything even vaguely resembling reality.
There are legitimate debates to be had about the issues that divide us, about the right balance between public investment in human and material infrastructure and laissez-faire market dynamics, about the degree to which we should be committed to maximizing equality of opportunity and how to go about it, about to what extent we should try to consider possible future consequences of current policies and to what extent we should focus exclusively on present outcomes, about, in general, what works and what doesn’t work, what best serves our liberty and prosperity and well-being and what doesn’t. My fondest hope and highest aspiration is that we become a nation that has those debates, as reasonable people of goodwill, wise enough to know that none of has all of the answers, working together in a complex and subtle world to do the best we can; to be, in other words, a nation of people who decline to drink various flavors of “the Kool-Aid,” and choose to be thoughtful, open-minded, and constructive citizens instead.
The purpose of my blog, Colorado Confluence, and this Facebook page that links to it is to promote the application of reason and imagination to evidence and accumulated knowledge and understanding in service to humanity. All points of view, all arguments, are welcome. If you have an actual argument to make, please feel welcome to make it: Understanding and insight are served by robust debate (the opposite of “drinking of the Kool-aid” of insulated dogmas blindly adhered to). The informationless, unreasoning, and generally meaningless one-liners about “drinking the Kool-aid” of secularism (ironically completely inverting the meaning of the phrase), and equating “secularism” and “socialism” in a catchy cliche about “calling the whole thing off,” are modalities best suited to other kinds of forums, offered for other purposes.
well, I guess you told me, huh? I will leave the rest to your ‘enlightened’ state of mind! My point being that your insulting comments regarding the disingenuousness of Santorum feed into the rhetoric we hear everyday in the main stream media. There has been a war against Christianity in this country for decades..actually, around the entire world! Mr. Bloomberg in NYC should heed your words about the ‘imprematur-lessness (sic) of churches who have used public buildings for worship when school is not in session….Other public entities would be smart to heed these same words when they are insistent on shoving other religious tenets down our throats by installing foot washes and prayer rooms in their institutions! IMO, secularism and socialism go hand in hand and both ideas are ruining this great country…Our Forefathers must be turning in their graves! God Help the USA! Goodbye….And, finally, my response to that:
The NYC law prohibiting the use of public schools for religious purposes is currently in the courts, where that balance between Free Exercise and non-Establishment will be struck. The main problem is that the congruency of non-school use days to some religious holy days and not others (Jewish and Christian, but not Islamic) may be construed as an implicit favoring of those religions that [have] their sabaths on the weekend. It’s a subtle question; my guess is that the courts will find that the NYC law is unconstitutional, and I would agree with that decision.
Your comments about the allowance of Islamic practices as well as Christian and Jewish, on an equal footing, merely goes to demonstrate your theocratic rather than constitutional orientation. Islam, according to our Constitution, is neither to be privileged nor discriminated against, and, if we fall short at all as a nation, it is in the latter rather than former error, one which you are determined to increase rather than decrease. You are of a mindset that Christianity should be privileged, and that the failure to do so is a failure of our national conviction. But that simply is not how our nation is Constituted. We are not a theocracy; we are a Constitutional Republic.
What’s most remarkable to me about her last comment was the equation of adhering to the Free Exercise Clause of the First Amendment of the United States Constitution, permitting and accommodating the free exercise of non-Judeo-Christian religions, with “shoving (those religions) down (the) throats” of those who don’t adhere to them! The notion that Christians in America are more discriminated against than Muslims, that Islam is “shoved down the throats” of Christians but that Christianity is just one religion among many, in no way privileged and in no way seeking to be, is so incredibly ludicrous, it simply boggles the imagination that anyone could argue such a position.
Our national debates aren’t over whether to permit Islamic and Christian religious imagery to co-exist, but rather whether to continue to privilege Christianity in the ways that it has been historically privileged, to use exclusively Christian imagery and language in official displays and communications relating to holidays and other religious events. It is not that these would-be theocrats want no religion shoved down anyone’s throat, but rather that they want their religion exclusively shoved down everyone’s throat!
This isn’t just an issue of religious zealotry and hypocricy and anti-constitutionalism pretending to be the opposite; it’s one example of the more fundamental divide in American politics, one which tracks the left-right divide to some extent but not exactly, one which is where our focus should be as we work on both ourselves as individuals and the nation and world to which we belong. That divide is between ideologies which favor irrationality over reason, and belligerent tribalism/sectarianism over a commitment to humanity. The solution is not to remain entrenched in the struggle to ensure that our own substantive certainties prevail over opposing substantive certainties, but rather to promote a greater and more widespread commitment to procedures and attitudes which systematically favor reason over irrationality, and humanity over various forms of bigotry and belligerence.
My current argument is not one about what the substance of our immigration policy should be (I’ve made such arguments in, e.g., A comprehensive overview of the immigration issue, Legality, Morality, and Reality Regarding U.S. Immigration Policy, Godwin’s Law Notwithstanding, Basal Ganglia v. Cerebral Cortex, Basal Ganglia Keeping Score, The Nature of the SB 126 Colorado ASSET Debate, Godwin’s Law, Revisited, and A Humane & Rational People), but rather about what the process for determining our immigration policy should be. As always, this argument is just one instance of the larger argument that we should commit ourselves to striving to apply reason to evidence in service to humanity, rather than engaging in careless habits that result in the application of irrationality to ignorance in service to inhumanity.
The focus of this essay is one clearly fallacious argument, that is, in fact, the principal argument used by those who take a stand unyieldingly hostile to millions of people, of a certain status, who currently reside in this country (and, by implication, millions more who would like to, but have no legal pathway toward doing so). Debunking this one argument does not, by itself, debunk their entire position, but rather merely forces the debate into a more appropriate framework, where any and all substantive arguments they may have can compete with any and all substantive counterarguments, in a process which best serves our better angels by giving our baser demons fewer shadows in which to hide.
The fallacious argument to which I refer is that the current widespread hostility toward undocumented immigrants and residents, in which these particular ideologues actively participate, is not only legally warranted but legally mandated. Their error is their failure to understand that the law, in the final analysis, is our servant, not our master. (Yes, in an intermediate sense the utility of the law is that it is binding and not optional, but it is designed to be a malleable and adaptable tool rather than, in its particulars, a fixed and permanent shackle.)
As an aside, the irony of this error is one thread of a larger hypocrisy: The people who make it are overwhelmingly the same people who insist that they are the most committed to “Liberty,” while in reality being the most committed to authoritarianism. But that is a topic for other essays (see, e.g., The Catastrophic Marriage of Extreme Individualism and Ultra-Nationalism).
The argument frequently invoked by this particular faction, that their hostility is not directed toward immigrants but rather only toward illegal immigrants, and that the word “illegal” conclusively supports their public policy positions on the issues of immigration and residency, reflects a fundamental misconception of the nature of law and the responsibilities of citizenship in a popular sovereignty. They mistakenly believe that a current legal status quo is the definitive refutation of both any public policy arguments that critique it, and any public policy arguments that defend other aspects of the current or proposed legal status quo that they erroneously consider somehow legally prohibited by some presumed inconsistency with the aspects they prefer. In other words, they presume that public policy arguments can’t challenge existing laws that they do like, and, at the same time, can’t defend existing or proposed laws that they don’t like, the latter based on some presumption of a legal prohibition against the existence of any laws which presuppose the violation of other laws. Both of these beliefs are easily debunked, and their mobilization in service to a blindly ideological position easily demonstrated.
Laws are something we make, implement, interpret, modify, and rescind according to processes that are themselves established by law (see The Fractal Geometry of Law (and Government)). They do not define what the conclusion of public policy debates and legal processes should be, but rather what they thus far have been. They obligate, with varying degrees of flexibility, individual behavioral compliance, not collective ideological conformity, rigid administrative enforcement, or perpetual universal legal consistency. The fact that laws do not mandate the latter three is in large measure how they evolve and adapt to changing circumstances, values, and understandings.
The response to an argument that we should, within the constraints and according to the guidelines of our current legal framework, alter or reinterpret or modify our implementation of our legal framework, with the counterargument that we can’t because the current substantive legal status quo is different from what the modified legal status quo would be, is like arguing a century and a half ago that we can’t abolish slavery because the right to own slaves is protected by law (an argument which was, in fact, frequently and persistently made). And to argue that we can’t pass laws short of a comprehensive change of paradigm because it would be an affront to that dominant paradigm is analogous to having maintained that we couldn’t have made the morally laudible step of allowing escaped slaves to attain their freedom in non-slave states because to have done so would have simply encouraged more slaves to escape.
Let me be clear: I am not comparing current anti-undocumented immigrant ideology to slavery. Rather, I am comparing the defense of one set of laws that we recognize in retrospect to have been morally repugnant and well worthy of being changed with the defense of a current set of laws that some (including myself) argue is also morally repugnant and well worthy of being changed, in order to illustrate that the public policy debate should focus on the value of the law rather than on the fact of its existence. A debate can and should be had about whether the current set of immigration and immigration-related laws are ideal or morally repugnant or somewhere in between. The mere fact that that set is the current law is irrelevant to that debate.
(It’s worth noting, however, that there are some similarities: Slaves were considered not to be citizens, a perception codified in law by the Supreme Court’s infamous Dred Scott decision. Abolishing slavery would have admitted this formerly excluded class into national membership. Allowing escaped slaves to attain freedom but not necessarily citizenship in non-slave states would have been analogous to allowing undocumented immigrants to enjoy some of the opportunities afforded citizens and legal residents without being automatically granted that status itself. The 14th Amendment’s establishment of jus soli, the doctrine that anyone born on American soil is an American citizen, was part of the long-unsuccessful attempt to demolish the legacy of slavery, root and branch, and still has implications relevant to immigration policy. Though the differences are greater than the similarities, the fact remains that exclusionary policies that tend to dehumanize those excluded inevitably resemble one another to some degree. See, e.g., Godwin’s Law Notwithstanding.)
It is our responsibility to determine what our laws should be, while also considering how best to implement and enforce the laws that currently are. Those with a zero-tolerance attitude toward undocumented residents, insisting that we are legally required both to in no way accommodate their presence here and to remove them all regardless of the costs (fiscal, economic, social, demographic, and moral), should also, for consistency, insist that every motorist who ever drifts even just one mph over the posted speed limit should be caught and fined regardless of the costs, and that laws which presuppose violations of the speed limit (e.g., prohibiting driving in the passing lane, even at or above the speed limit, on the basis that it obstructs other motorists who might want to pass) are somehow unacceptable (or themselves “illegal”).
Or, to pick a more illuminating example, even though it is illegal to jaywalk, a motorist is still legally obligated to yield to that law-breaker, who is thus protected from some of the negative consequences of his or her infraction by another law accommodating it. (After all, aren’t we just encouraging more people to jaywalk by requiring motorists not to run them over?)
Again, let me be clear: I am not comparing illegal immigration to speeding or jaywalking. I am, rather, debunking the fallacy that no law can or should exist which presupposes, or even at times accommodates and implicitly “encourages,” the violation of another law. Our laws neither require nor benefit from that kind of rigid consistency: We can, and should, have laws which both prohibit certain activities, and that protect or accommodate those who violate them. Such laws are particularly well advised when the infraction is non-violent and non-predatory, the protection vital to that person’s safety or sustenance, or the accommodation ultimately in the public as well as private interest (such as by giving all residents of the country maximal opportunities to become productive members of society, rather than denying such opportunities and thus increasing the rate of socially, fiscally, and economically costly dependency and predation).
When people oppose, for instance, a law which would allow in-state undocumented high school graduates to attend state universities at in-state tuition rates, with the argument that the current law somehow prohibits the passage of such a law (“what part of ‘illegal’ don’t you understand?!”), they are inventing a legal doctrine that doesn’t exist (a requirement for perfect consistency among all laws), in order to insist on a particularly vindictive and counterproductive policy position.
Our national debate regarding immigration (as with all issues) needs to focus on what set of policies realized through what legal paradigm best serves our national interests and values. Citing the current legal status quo as an argument in that debate is, in reality, an attempt to insulate preferred elements of that status quo against criticism without having to mobilize any rational or informed argument, or address any rational and informed counterarguments, to do so. At the same time, citing one aspect of the current legal status quo (e.g., the laws against entering and being in the country without legal authorization) as an argument against another aspect of the current legal status quo (e.g., administrative policies not to target for removal those who have not committed other crimes) is an attempt to argue in favor of a change in the legal status quo without having to mobilize any rational or informed argument in support of such a change.
These are not just irrational and, to put it politely, “information-disregarding” arguments in our national debate on immigration policy, but are also instances of a larger contest in American political discourse: The contest between, on the one hand, a commitment to reason applied to evidence in service to humanity, and, on the other, a commitment to irrationality applied to a disregard of the evidence in sevice to inhumanity. It is a contest which those of us who champion the former must win both issue-by-issue, and in more profound ways as well, transcending the individual issues, reaching into the heart of our collective consciousness, transforming with the spirits of reason and goodwill the memes and emes of our own persistent inhumanity.
(This essay was a final exam paper for a Legislative Practice class with Prof. Paul Campos – “the philosopher” referred to in the essay- at the University of Colorado Law School, written in December, 2008)
“The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.”
-Edward Gibbon, “Decline and Fall of The Roman Empire”
One need not be a solipsist to recognize that he cannot refute the unreality of a law by kicking either it, or its unambiguous and definitive meaning, but neither need one be a Bishop Berkeley to recognize that the reality of law is precisely the fact that we imagine it to have one. We have focused this semester on the elusiveness of the meaning of any given law, and on the various fictions employed to disguise that elusiveness. This, of course, is not a phenomenon particular to law, but rather a basic linguistic (and epistemological) fact: The ambiguity of language (and, more generally, the individuality of perception and cognition) produces a multiplicity of possible interpretations. Any text (or communicative act), especially one that is authored by multiple people through some collective process (such as illustrated by the convoluted politics by which the Civil Rights Act of 1964 was passed), has no single intent or original meaning, nor does it remain tethered to the context of that process when later readers (or audiences) implement it. Even the meaning of a single text by a single individual is not a fixed entity: Is it what the author intended, or what each interpreter understood? Should it be interpreted literally when experience and context suggest that the purpose of the text is better served by filling in the blanks and adapting it to changes in circumstances?
Given the fact that the interpreted law is a chameleon molded by the various attributes of various minds employing various techniques serving various biases and predispositions, it is, arguably, merely a sham, an “opiate of the masses,” which the magistrate finds useful because it legitimates his power and enables him to better herd the beguiled sheep. To serve this function, the people must be duped by the sham, must accept the law –arrived at by all the various modes of legal interpretation employed by its practitioners (“the various modes of worship”)– as an objective reality, so that they will submit to its authority. And the philosopher deconstructs this system of fictions upon fictions, vacillating between an existential crisis and a concern that he may be abrogating his responsibility by destroying the illusion he is paid to maintain and to train others to maintain.
My thesis is that the philosopher need suffer neither affliction. The comedian George Carlin, somewhat paralleling the Gibbon quote above, said, “Some people see a glass that’s half empty, others see a glass that’s half full, but I see a glass that’s twice as big as it needs to be.” In other words, it is what it is. We can measure our social institutional framework, knowing that it is all smoke-and-mirrors, against some unattainable ideal of the just and transparent society, and despair that it has fallen so short (the utopian approach). Or we can measure it against it’s absence, and rejoice that we are, to some limited extent, spared the “short, nasty, and brutish lives” of all other creatures (the Hobbesian approach). Or we can, like the philosopher, strive to understand precisely what it is, to reveal the little man behind the curtain, to peel the onion away and find insight in the void thus revealed, but, while doing so, avoid the philosopher’s crisis by mitigating our angst with a combination of pragmatic utilitarianism and benevolent egalitarianism.
The Great and Powerful Oz, Toto, and the Little Man Behind the Curtain
Our legal system is a dialectic of mythos and logos, a functioning mythology operating according to its own internal logic, but also implicitly challenged by the logic of critical analysis. The mythos is employed to legitimate power, and in doing so, to co-opt logos, to convert (using Max Weber’s terms) “traditional authority” into “rational authority,” and to claim that “charismatic authority” (personal authority subject to personal caprice) has been vanquished from the realm of law. To articulate the Gibbon quote, the Wizard of Oz metaphor, and the dialectic of mythos and logos: The people are awed by the mythos (“The Great and Powerful Oz”), while the philosopher (Toto) tugs at the curtain hiding the magistrate employing his machinations (the little man pulling the levers). The magistrate, wittingly or unwittingly, uses mythos (the mechanisms of which are hidden behind a curtain of logos) to beguile the people, while the philosopher uses logos to pull at that curtain and reveal what’s behind it, creating a dialectic between critical examination and uncritical legitimation.
The mythos is that we are “ruled by laws rather than by men.” The curtain of logos that hides the magistrate’s subjectivity is comprised of various theories and techniques of legal interpretation (briefly summarized below). The people uncritically accept these theories and techniques as true and legitimate, the esoteric tools of legal wizardry. The philosopher rejects them all as the sophistry of actors who either accept the play they are in as reality, or pretend that they do. And the magistrate is untroubled by the question as long as order is maintained, and the status quo unthreatened.
The Dead Hand of the Past, the Capricious Hand of the Present, or the Mindless Alternative?
The pleats of the curtain of co-opted logos hiding the little man and his levers are intricate indeed, involving choices along the two primary dimensions of past (when legislated) to present (when interpreted), and narrow (literal) to broad (interpolative). The large folds are defined by three theoretical approaches: 1) intentionalism, which purports to discern and apply the original intent of a statute’s authors; 2) purposivism, which purports to discern and apply the statute’s purpose; and 3) textualism, which purports to discern and apply the statute’s “plain meaning.” Lodged within and draped across these broad theoretical approaches are both specific applications, such as legal process theory and cost-benefit calculations, and the canons of statutory interpretation, falling into three categories: 1) textual canons, 2) substantive canons, and 3) reference canons. There are folds within these folds, of course, linguistic rules, guidelines as to which statutes to interpret how broadly or narrowly, when and how to go beyond the text to “discover” its meaning. But the essence of the matter is that laws are, by the nature of texts rather than by choice, intersubjectively produced, that the interpretive techniques which contribute to their production do not discover something objectively in existence, but rather mold it through the act of delivery, each midwife attempting to finalize the product, but its finalization, to the extent that such exists, being achieved by the subjectivity of an institutionally powerful individual channeled through the artifice of these interpretive techniques.
The inevitability of interpretation is illustrated by Rex v. Liggets-Findley Drug Stores, Ltd., (1919), in which a municipal ordinance required that drug stores “be closed…at 10 p.m.” every day. A narrow literal reading of the ordinance would imply that the drug stores could close from 10:00 p.m to 10:01 p.m., and then reopen without violating the ordinance. The Canadian judge who wrote the decision held that “we should take the words to mean what they would quite clearly mean to the ordinary person,” that the stores should remain closed for the rest of the day (but could they then reopen at midnight?).
In Rector, Holy Trinity Church v. United States (1892), Justice Brewer employs a “funnel of abstractions” to argue that an “accurate” interpretation of a protectionist statute barring employers from paying for the passage of imported employees should not be read to bar the church from paying for the passage of an English minister: From the least abstract (the “common meaning” of the word “toiler”), up through the specific intent of the statute as applied to this case, through the general purpose of the statute, through the social policy it serves, and, at the highest level of abstraction, to the greater social good intended. Even had the argument been strained at some or most of these levels, the others could have been used to come to any preferred conclusion.
Steven Smith, in “Law Without Mind” (88 Mich. L. Rev. 1989), frames the conundrum this way: According to current legal theory, we have essentially three choices: 1) “originalism,” whose primary defect (setting aside the epistemological problems of determining original meaning) is to bind us to “the dead hand of the past,” thus limiting our ability to inform our implementation of the law with the values and challenges of the present; 2) “pragmatism,” whose primary defect is the replacement of “the rule of law” with the caprice of judges; and 3) “present-oriented interpretation,” which “seeks to appropriate the virtues of each,” but, by freeing itself both from “the dead hand of the past” and the living caprice of the present, relegates itself to the realm of the arbitrary. The defect of the present-oriented interpretation, according to Smith, is that it neither binds judges by the political will of the legislators who enacted the statute, nor empowers judges to pragmatically “promote present values and objectives.” Rather, it surrenders human rationality to an inanimate text detached from its authors but binding on its interpreters.
Zen and the Art of Legislative Interpretation
The theories and canons summarized above purport to address the fundamental ontological and epistemological questions of legal interpretation: 1) what is the law? and 2) how do we know what the law is? The normative as well as descriptive versions of these questions are implicit within them: 1) what should the law be? and 2) how best should we determine what the law is? As disciples of the philosopher, we know that it is ultimately impossible to determine what the law “is,” that it does not have a fixed objective reality independent of our act of interpretation. What it is is inherently elusive; what it should be is a debate framed by various fictions. How, then, should we conceptualize the enterprise?
“What is law?” and “What is the best way to determine what law is?” are both similar to the question Robert Pirsig asked in his novel Zen and the Art of Motorcycle Maintenance: “What is quality?” Is “quality” (in reference, say, to art or music) what a few self-anointed experts say it is, or what is most popular? Neither solution seems quite satisfactory: The consensus of experts (embracing, for instance, dots on blank canvases and atonal compositions) often appears more pretentious than insightful, but popular preferences (for, say, paintings of Elvis on velvet or songs by Brittany Spears) often appear more anesthetizing than aesthetically redeeming. Similarly, in academe, post-modernists and positivists ridicule one another for being either oblivious to reality or oblivious to the lack thereof, and no authority stands over these feuding camps to declare which paradigm is of higher “quality.”
But this elusiveness does not mean that “quality” does not exist. We know it does, can come to general agreement on some isolated examples (such as that a requiem by Mozart is of “higher quality” than the latest pop hit), and can wink among ourselves at some more contested examples (such as whether Sarah Palin or Joe Biden was a “higher quality” candidate for Vice President).
“What is the law?” and “what is the best way to determine what the law is?” are similarly elusive questions, similarly contested by the highest authorities, but referring to something as real, and a process as inevitable, as the recognition that “quality” exists. To arrive at the best (i.e., most functional and most fair) answers we need to embrace this reality rather than rage against it. The fundamental “defects” in legal interpretation we’ve discussed this semester are inherent ontological and epistemological limitations; they cannot be remedied, and therefore should not be cause for despair. They are parameters rather than variables, givens within which we operate rather than malleable factors upon which we can work our will. The self-help organization “Alcoholics Annonymous” has enshrined the appropriate attitude to take toward such parameters in The Serenity Prayer (“Give me the strength to change what I can change, the patience to accept what I cannot, and the wisdom to know the difference”). As obnoxious as it may be, it is none the less a pearl of wisdom: What sane alternative is there to this sage advice?
Therefore, the facts of diffuse authorship, unrecoverable original intent, and the inevitable injection of the interpreter’s subjectivity in the act of interpretation are not, per se, legitimate causes of concern, because they themselves (as opposed to how they inform strategies in response to them) are fixed constellations that can neither be wished nor legislated away. It is reasonable and useful to recognize and be informed by these facts, but not to lament them. To what extent these parameters should be openly acknowledged, and to what extent they should be discretely downplayed, is a question inevitably addressed by the process discussed in the next section.
The Political Epidemiology of Reifications (and other memes)
Within the parameters we are obliged to accept, we are confronted with sets of interrelated choices: To what extent should we prefer the “dead hand of the past” to the caprice of the present, and to what extent should we bind judges by increasingly elaborate algorithms of interpretation, perhaps, at the extreme, programmed to evolve by meta-algorithms as they encounter unforeseen circumstances, rather than delegating discretion to judges, incurring both the benefit of the latter’s more supple minds and the detriment of their prejudices and predispositions? How much caprice can be permitted without undermining legitimacy, and how much rigidity can be imposed without undermining substantive reason and justice? Steven Smith presents us with three alternatives, each of which reifies something clearly dysfunctional: either the increasingly anachronistic supposed intentions of the legislators who enacted the laws, or the prejudices and predispositions of judges largely untethered from those texts, or the decontextualized constraints that bear a disconcerting resemblance to medieval trials by ordeal. But to proffer no acceptable alternative is to beg the question: In this imperfect world, what is the best we can do?
In a sense, we are doing it right now. The people, the philosopher, and the magistrate are all just muddling along, individually and collectively pursuing desired goals, and, through some combination of trial-and-error and proactive innovation, carve our social institutions in the lathe of time and numbers. “Memes,” like genes, are packets of information that reproduce (are communicated), mutate (are altered through interpretation and innovation), compete for reproductive success (e.g., guns or spears? pantheons or Yahweh? socialism or capitalism?), and thus evolve (Richard Dawkins, The Selfish Gene, 1976). The myth of “the rule of law” is a somewhat successful meme, and in many ways beneficial to our collective existence: The magistrate is not wrong that the techniques by which it is maintained are all equally useful. But neither is the philosopher wrong to question the validity of those techniques, to analyze them, and to seek to refine them. Order without justice is oppressive; justice without order cannot exist. The reification of “the rule of law” provides more order than justice, but its absence provides neither. The challenge, then, is to accept its reification, and to maximize the justice produced by refining the particular form of that reification.
This is not a benign process, nor one actually pursued as a global collective enterprise. My use of the first person plural (“we”) has been a simplification that must now be unpackaged: The selection of genes according to their relative reproductive success produces organisms that are carved by the requirements of such success. This biological algorithm produces complex arrangements of both cooperation and competition, and a variety of strategies. Humans embody what may well be the epitome of the flexible strategy, one which in fact produces an echo of the evolutionary process in the form described above. We can conceptualize and communicate in order each to pursue his or her own fundamentally selfish agenda, which generates ever more sophisticated forms of cooperation along the way (just as biological evolution does, in the formation of ecosystems). Cooperation is so advantageous to those who can overcome the obstacles to it that our social institutions -our hierarchies, our markets, our norms, and our ideologies- are laden with mechanisms to align our individual and collective interests, through structures of legitimate authority, means of exchange, informal social approval and disapproval, and values and beliefs which create cognitive dissonance when we fail to police ourselves.
But the politics of the processes which produce these arrangements is an ever-present element. Cooperation is a means to compete more effectively: People, historically, band together to gain advantage over others. Human history is, in a sense, the story of conquerors and the conquered. Conquerors become rulers and nobles; the conquered become peasants and laborers. The competition between conquerors and their respective states, however, forces refinements to more effectively raise and finance armies, which forces some decentralization of power in order to better exploit the state’s human and natural resources in service to this competition. The decentralization of power fosters and facilitates resistance to power, while concessions by the powerful become increasingly expedient. By these and other mechanisms, the modern world saw the rise of “liberal” societies, and the ideologies that accompany them. But our social institutions still bear the imprint of violent power struggles which produced somewhat hereditary winners and losers, and our social institutions are still the arena within which such power struggles continue to ensue.
So, while order is useful, complacency about the existing order is always unjust. The reification of “the rule of law” facilitates our aggregate prosperity, but it disproportionately benefits the rich and powerful, because the rich and powerful were (and are) its authors. Justice requires resistance and criticism; justice requires Toto tugging at the curtain. It is a happy coincidence that evolutionarily successful memes have facilitated processes of decentralization of power and diffusion of wealth, and probably will continue to do so, gradually infecting even those societies less blessed by egalitarian social institutions. The egalitarian values that have gradually and incompletely matured in conjunction with this decentralization of power and diffusion of wealth reinforce the process, and motivate actions in service to it. But the underlying dynamic by which all this has happened, and will continue to happen, is essentially political, involving strategic behaviors in pursuit of personal and local advantage.
By sublimating primal conflict and channeling it through peaceful social institutions, humans prosper. Belief in “the rule of law” has proven to be a powerful meme contributing to the effective sublimation of that primal conflict. But the struggle for an increasingly just society that can and should take place within that social institutional context necessitates vigilant attention to the reality behind the myth, to the political exercise of power inevitably embedded in the depersonalized reification. There is an inherent tension that cannot be escaped: The sublimation and pacification of human conflicts and passions accomplished by the reification of “the rule of law” is simultaneously oppressive and liberating. It liberates us from the “war of all against all,” but it institutionalizes the brutality of huge disparities of wealth and power. And as such it challenges us to strike the delicate balance between maintaining the myth and resisting its ossification.
In light of this analysis, the goal of legal interpretation, then, is not to be true to the political will of those who enacted the statutes, nor to avoid the “mindlessness” of “present-oriented interpretation,” nor to eliminate the caprice of judicial pragmatism; it is, simply, to maximize the justness of the imposition of authority on those who have been pacified by that authority. Clearly, the respective defects of these three modes of legal interpretation each reduces, in one way or another, the justness of the authority thus imposed. But just as “the perfect should not be the enemy of the good,” neither should it be the enemy of the merely possible. Identifying the most just, or perhaps the least unjust, option among all known alternatives (while simultaneously attempting to contemplate alternatives not yet known), and engaging in the political struggle to implement it, or to implement a compromise that approaches it, is the best we can do.
The fact that these competing flawed paradigms are discussed and debated, each having its own authoritative supporters and detractors, with the ever-present possibility of new additions entering the fray, is precisely the robust competition of memes required to prevent the ossification of a suboptimal status quo. Nor is it merely an ivory tower academic exercise: Judges themselves, by the choices they make, subject these paradigms to the crucible of human experience. It is a messy and often unjust process, but, at present, I can think of no way to improve upon it, and if and when I do, I will merely be participating in it. As John Maynard Keynes subtly put it (before Winston Churchill appropriated the quote in particular reference to Americans), “Men (sic) will do the rational thing, but only after exploring all other alternatives.”
The Emperor’s New Clothes
The law, like all social fictions, is a naked emperor whose clothes we are taught to admire. Law school is the in-depth analysis of the fine raiments the naked emperor wears. To the curmudgeonly philosopher who feels obliged to point out that the whole process is the reification of an unreality, that the real fates of real human beings are decided by a confused little man behind a curtain, that the Great and Powerful Oz is all smoke and mirrors, this vast fiction is malignant rather than benign, half empty rather than half full. But it is neither particularly malignant nor particularly benign; it is what it is.
Not all social fictions, not all social institutional contexts, are equal; not all are of equal “quality.” A quick survey of systems of justice and checks on power that the world has yet produced suggests that the myth of “the rule of law” is worth retaining for the time being.
That the fiction evolves, driven by some combination of psychological needs and material desires, through political struggles large and small, is, at the very least, one of nature’s fascinating wonders. Rather than apes foraging in the African savanna, naked and vulnerable to all of nature’s limitless injustices and indignities, humans now live clothed in the products of the mind, which inflict limitless injustices and indignities of their own. And yet, these fictions, these products of the mind, these technologies and social institutions, afford me the luxury of contemplating them, while sitting in this comfortable chair, sipping my favorite beverage. Through such contemplations, and a prospective career dedicated to helping sew and select the naked emperor’s imaginary wardrobe, I hope to marginally influence the evolution of legal memes in such a way as to ever-so-slightly increase human welfare. The American judicial system is still laden with injustices and indignities, with intolerable frustrations and galling deficiencies. There is no cause for complacency. But this horribly imperfect system fares well in comparison to known alternatives. And it certainly beats running from lions on the African savanna.
As I wrote in The Dance of Consciousness, there is an eclectic coherence to the thoughts expressed on this blog, as there is to all thought that penetrates beneath a certain level of superficiality, and much that doesn’t. And as I explained in The Algorithms of Complexity, that coherence is a product of what might be described as “a tree of natural algorithms,” with larger branches controlling smaller ones, and our shared intellectual (and thus political) quest being getting closer and closer to the sublime and perhaps ultimately unattainable “trunk” controlling them all.
I described this in terms of a synthesis of several ideas about ideas, including paradigm shifts, dialectics, and meme theory. We live in a world forged by a competition of ideas, some sets of which may come to predominate in certain times and places (in the form of dominant paradigms), but which themselves are constantly challenged by both internal anomalies and conflicting interests or perspectives, combining an on-going problem-solving process with an on-going competition of both ideas and material interests.
To be clear, the competition of ideas has a large material component, such as the competition between military and economic technologies (which are implemented sets of ideas), a competition decided by which win in a physical competition over either the relative ability to physically coerce, or the relative ability to win market share.
In many ways, what happens in academe is more deeply political than what happens in politics narrowly defined, because it involves explorations into deeper currents that eventually inform the shallower ones. The processes are intertwined, so that as political permutations of academic ideas are discredited, so are the academic ideas, whereas political forms that succeed become academically rationalized.
So, the Enlightenment ideas of Locke and Montesquieu were derived from a combination of classical political philosophy and the recent historical experience of Western European, and particularly English development (most particularly in the form of The Glorious Revolution of 1688, which was arguably more the moment when sovereignty shifted from crown to people than was The American Revolution), and in turn informed the American Revolution and U.S. Constitution, which have been vindicated by historical success, securing the success of their foundational ideas along with them. Conversely, the equally intellectual ideas of Marx and Engels, as well as a variety of fellow-traveling anarchists and socialists, informed horribly failed political experiements, discrediting the whole complex of imperfectly implemented ideas along with the discredited attempts to implement them.
This sometimes involves “babies” being thrown out with “bathwater,” or “bathwater” being retained along with the “babies” that were in it, such as the popular Western dismissal of every idea Karl Marx ever had due to the abject failure of most societies that tried to implement his general doctrine, or the popular acceptance of an idealized laissez-faire economic philosophy because the more nuanced reality more or less incorporating it has proven to be generally successful along certain highly valued dimensions.
Not only are our ideas and political forms a product of various dialectic and paradigmatic dynamics (including the dialectic of conceptualization and implementation), but also of how these are compiled into ideological packages. The translation of ideas and political forms into political ideologies is very consequential, because even slight errors can be amplified into tragic proportions. For instance, Social Darwinism, despite how horrific it was, was essentially just the confounding of a descriptive reality with a normative one, justifying and even idolizing successful brutality because successful brutality tended, historically, to prevail.
The challenge we are faced with, as conscious beings, is how best to participate in these processes. There are many facets to this challenge, including identifying the purpose(s) of our participation, and the degree to which we feel any imperative to impose our will on the organic development of human history. Some might argue that there is no real purpose to our participation, that we should each simply pursue our own lives, addressing our own interests and the interests of those we care about, and let the rest take care of itself. This is the value-system of “mutual indifference,” caring about ourselves and those closest to us, but not caring about others only to the extent that doing so serves our primary concern.
But this is akin to “non-cooperation” in collective action problems (see Collective Action (and Time Horizon) Problems), condemning everyone, now and in the future, to fare less well than we otherwise might have. It is the embrace of a mere hyped-up animal existence, grasping in the moment, without far-reaching imagination or foresight or compassion in any way informing our choices. The result is a combination of organized violence and relentless exploitation of any human or natural resource that any group is able to exploit, to our own ultimate self-destruction.
Both humanity and Gaia are better served by more conscious participation in our shared existence, by the proactive effort to understand the systems of which we are a part and which comprise us in order to most fully realize the genius of the many, in service both to our collective material welfare, now and in the future, and to our cognitive capacity to most fully enjoy it. I call the ideology which best meets this challenge “cynical idealism,” the pursuit of the ideal in the cold light of an unflinching understanding of less-than-ideal existing realities.
What we see more frequently is the exact opposite: “Idealistic cynicism,” which is the idealization of who and what we are, while essentially surrendering to the cold, cruel realities of the world. One prominent examples of this is the ”angry progressive” movement, driven by the belief that conservatives are the enemy, and committed to achieving immediate progressive policy ends while surrendering to politics as usual in order to do so. It is idealistic about existing realities, by frequently ignoring the real political dynamics by which those ends must be achieved, inconveniences such as compromising with competing points of view and interests, while remaining cynical about our ability to ever transcend our current state of being in any fundamental way (despite the historical reality of constantly transcending previous states of being in very dramatic ways, through a combination of technological and political economic revolutions, for instance).
Another example of “idealistic cynicism” is Tea Party conservatism, which is superficially the opposite of angry progressivism, but on a more fundamental level representative of essentially the same political modality. Tea Partiers are driven by an ideal that they believe to be immediately dispositive, the ideal of absolute freedom from state (i.e., mutual) coercion, which is mobilized in service to an implicitly cynical reality, that we are just a collection of ultimately disconnected individuals whose highest responsibility to one another is to stay out of each other’s way.
Both of these archetypal examples of idealistic cynicism are dogmatic, convinced of substantive truths without worrying too much about how those substantive certainties were arrived at. Cynical idealism, conversely, is the exact opposite: It focuses on procedures by which to improve both our understandings and our implementations of those understandings in service to our collective well-being, here and elsewhere, now and in the future. A cynical idealist recognizes our foibles, including the foibles of oneself, and so is more committed to careful examination of the strengths and weaknesses of various conceptualizations and proposals than to precipitous advocacy of the ones they find most emotionally appealing (the latter leading to our noisy and dumb politics of today, a competition of ideas less refined than otherwise might have been attainable in an alternative political culture).
Therefore, the first pillar of transcendental politics is a dominant commitment to procedures and methodologies, and a more humble and flexible commitment to the inevitably tentative substantive positions that are produced by those procedures and methodologies (see Ideology v. Methodology). This has already occurred to a large extent in one of the most important of our deep political institutions: Academe. Academe is political because it is a place where we produce authoritative (though often competing) statements about reality. And it is not, as has been the historical norm, a mere branch of politics narrowly defined, authoritative truth being a product of who can force it upon others, but is rather, to a large (if inevitably incomplete) extent, a product of a very sophisticated process, of a particular algorithm of for discovering certain facets of reality, carved on the lathe of history, and by the efforts of human beings engaging in it and advocating for it.
It has also occurred, to a lesser but growing extent, in law, where resolutions of legal disputes (including disputes over the meaning of the law itself) are resolved through a very highly refined academic process. This is not to say that politics narrowly defined do not in some ways and at some times control decisions in both of these spheres: Supreme Court justices and federal judges are appointed for political reasons, with attention to their political predispositions; scholarship can be funded or unfunded by political processes, and certainly is very much in the grips of the local politics of academe itself. The point is not that some absolute transcendence of the politics of competing material interests and precipitous substantive certainties either motivated by those interests, or manipulated in service to them have been completely transcended by the disciplines of law and science, but rather that some marginal degree of such transcendence has made significant inroads through these two methodologically-dominated spheres of our social institutional realm.
The major benefit of this procedural or methodological commitment is that, if well designed, it steadily increases The Signal-To-Noise Ratio, and does so at a constantly accelerating rate. The same methodologies can be used to continuously refine the methodologies themselves, and to continuously refine the procedures by which the procedures are refined, delving ever deeper into the The Algorithms of Complexity, just as the fictional character Algono did in the abstract metaphorical representation of this process in The Wizards’ Eye.
We are on a journey, both individually and collectively, both haphazardly and intentionally, toward ever deepening consciousness, and toward ever more holistic and robust implementations of that consciousness in the form of our social institutional and technological landscape. It is a journey which occurs both despite and due to our efforts, one whose path and destination are not predetermined, but whose logic will sweep us along slowly or quickly, painfully or happily, in service to some at the expense of others or in service to all at the expense of none. These are the dimensions along which our shared fate varies, dependent on the degree of compassion and wisdom we employ and cultivate, in ourselves and in those around us.
I have offered my own nascent view of a way in which we can participate more consciously and more effectively in this shared endeavor of ours, as I have defined it in this essay (see The Politics of Reason & Goodwill, simplified, or, for the more in-depth version, A Proposal). But that suggestion is just one starting point for discussion. The essential step, and the only thing we ever need agree on, is that we are capable of doing so much better than we are doing now, and that there is a conceptual framework that better serves our ability to do better than the blind ideologies to which we currently cling.
The benefit of striving for the ideal of “the rule of law” is that doing so imperfectly seals out human caprice and the unrestrained exercises of power that such caprice enables. But it does so at a cost, for striving for the ideal of “the rule of law” also imperfectly seals out the ability of unrestrained minds to make nuanced, context-sensitive decisions on a case-by-case basis. The lathe of history, spun with an eye to maximizing the benefit while minimizing the cost (though also with the bias of power resisting its own marginalization), has carved out a balance between relative objectivity (“blind justice”) and nuanced human judgment by allowing decisions in the interstices of established law to continually create new and finer filaments reaching into the endless inner-space of novel fact patterns.
Combined with this is the political game of testing how much ambiguity can be read into words and phrases given from above in the procedural flow-chart of legislating, executing, and adjudicating the law, and to what extent that real or imagined ambiguity can be exploited to stretch and fold the law to desired ends.
While I am about to describe the dynamical, evolving legal structure generated by these forces in static, structural terms, it’s important to remember that it is really an on-going process, one consisting of the movement and manipulation of human cognitions (see The Evolutionary Ecology of Social Institutions and The Fractal Geometry of Social Change for a more comprehensive description of this more general phenomenon). The specific sphere of human cognition most centrally implicated in the generation and evolution of the legal structure is that which is encompassed by policy analysis and legal reasoning, the latter representing finer filaments of the former. As I wrote in a law school final exam essay:
Legal reasoning is artificially constrained policy analysis. If ethical and political discourse is a ship adrift at sea, then legal reasoning is a ship that has dropped an anchor too light to keep it from drifting, but heavy enough to drag on the seabed and restrict it’s meanderings. Even when the anchor momentarily snags on the kelp of a particular law or legal theory, the ship of legal reasoning still swings in broad arcs defined by the length of the anchor line and the currents of the sea. Of course, the anchor itself, its weight and the length of the line, and the kelp upon which it snags, are shifting functions of the drifting ship rather than exogenous parameters, byproducts of generations of ethical and political reasoning which themselves drift with the judicial-political zeitgeist. And not one but many ships are adrift at once, exploring many areas of law, proliferating and occasionally pruning the thickening forest of kelp while becoming entangled in the growing vines. Legal reasoning, therefore, is a subset of policy analysis, with tentacles branching like veins throughout the universe of ethical and political discourse, according to a fractal geometry generated by an algorithm of “distinctive . . . argumentative techniques” and limiting rules.
The U.S. Constitution and the English common law, together, provide the broad framework within which this cognitive process takes place. The English common law (the accumulated law created by court decisions over the centuries) was adopted and continued by the new United States, the Constitution being the first codification of our own will carved into it. Gradually, Congress and state legislatures continued this process of codification within the universe defined by common law, enacting statutes which superceded the common law, sometimes merely codifying it and sometimes overriding and replacing it. These two levels (state and federal legislation) articulated in their own way, with states building on federal law, and federal law sometimes nationalizing widespread state laws.
Eventually, the complexity of the economy and our demands on government generated the need for finer filaments of codified law, a finer elaboration within the framework of statutory law. Congress (and, to a lesser extent, state legislatures) increasingly delegated essentially legislative responsibilities to executive branch administrative agencies, which promulgated regulations designed to specify more precisely how to define the broad statutes passed by Congress.
As can be seen from the above discussion, the legal structure in America is recursive, with the broad, general outlines of common law and the Constitution filled in by more massive and specific statutes, which in turn are filled in by yet more massive and specific regulations, all carving out codified law from the space historically occupied by common law. But this recursiveness occurs not just in enacted and codified law, but also in the evolution of common law itself, with court decisions occasionally encountering novel fact patterns not perfectly anticipated by existing common law, and, like occasional mutation creating new species, coming to decisions in response to these anomalies which generate new inner-spaces of common law.
This does not exist independently of the courts’ role in interpreting Constitutional, statutory, and regulatory law. Not even the fine filaments of regulatory law can anticipate all contingencies. Courts are left to decide cases in which, occasionally, the specific facts fall within the inevitable remaining gaps in Constitutional, statutory, regulatory, and common law. (In regulatory law, this occurs first in administrative courts with quasi-judicial functions, and only sometimes then end up in Article III judicial courts). This is the mechanism by which the finest filaments of our legal structure are forged.
One can discern in all of this the complementary fractal geometry of government, which exists to create (legislative branch), implement (executive branch), and interpret (judicial branch) the law. Our founding legal and governmental blueprint (the Constitution) provides the simple formula that, when iterated and reiterated over time, generates the branches and twigs and tiny veins of both government and law. The three branches of government exist at the federal, state, and local levels (the executive and legislative often being combined at the local level, particularly in county commissioners).
Congress is mirrored at the state level by state assemblies and at the local level by city councils, county commissioners, school boards, and transportation (and other special district) boards. The federal executive branch, headed by the president and including the Cabinet and the major executive branch agencies under the control of these secretaries (e.g., departments of state, interior, defense, etc.), as well as the proliferation of regulatory agencies created by Congress, is mirrored at the state level by the Governor’s office and state level administrative agencies, and at the local level by city mayors, county commissioners, school superintendents, and special district board chairmen. Similarly, federal courts (comprised of appellate circuits which in turn are comprised of federal districts) are mirrored, recursively, by state courts (comprised of state districts), county courts, and municipal courts, with specialized courts tucked into this structure. Quasi-governmental entities such as HOAs fill in some of the remaining gaps.
Inevitably, some of this is excessive, redundant, and wasteful. The underlying algorithm generating, continuously, this complex fractal of law and government doesn’t have an “off” switch, and is over-productive in part because of political pressures both to try to cover all bases and to appease all interests. And some of it is oppressive, imposing an excess of controls on individual freedoms, particularly at the micro-quasi-governmental levels (e.g., HOAs).
But the wastefulness and oppressiveness of this throbbing, organic entity tend to be exaggerated, and its utility underappreciated. Some of the redundancy is functional, providing checks and balances, and allowing for efficiencies of less cumbersome and expensive recourses as a first response, in order to siphon off the simpler issues and filter out all but those that need to continue up the hierarchy into more elaborate and involved processes, leaving each issue addressed at the level most appropriate for it. And rules, in reality, can liberate as well as oppress, protecting rights and coordinating our coexstence without requiring us to spend all of our time and energy ordering our coexistence from scratch in an endless trap of institutional amnesia.
The massive size of bills drafted by Congress is as much a function of the complexity of the world in which it is legislating as of the political processes that cause accretions of “pork” to glob on to every piece of legislation. Some of that bulk is due to Congress’ healthy desire to cede as little power as possible to the executive branch, for once enacted legislation leaves Congress and enters the administrative infrastructure, Congress loses control of it. The more gaps Congress leaves to be filled in, the more those administrative agencies end up writing the law, and rewriting it in accord with successive presidents’ ideologies. In other words, even while our laws are a messy product of an imperfect world, they are amazingly adapted to the complex challenges of that complex world even so.
What’s left over after Congress, state legislatures, and local governments carve their enacted law into the space of haphazardly evolved common law is the inner-universe of the unforeseeable, to which the organs of legal production must constantly respond and adapt. This is the function, first, of the judicial branch, at all levels, addressing, on the margins, unique circumstances unanticipated by both existing common law, and existing federal (constitutional, statutory and regulatory), state (constitutional, statutory and regulatory), or local law.
When existing law cannot be interpreted in service to reason, the courts generally must submit to the unreasonable, while, in their written opinions, sending a message to legislators that there is a defect requiring their attention. Depending on the egregiousness of the defect and the political obstacles involved, the defect may or may not be remedied. This process can certainly be improved upon, lubricated and rationalized. While the lathe of time places a constant pressure in favor of doing so, the institutionalized resistance to that pressure can be quite obstinate.
All of this articulates with the processes described in Adaptation & Social Systemic Fluidity, The Evolutionary Ecology of Social Institutions, The Fractal Geometry of Social Change, The Evolutionary Ecology of Human Technology, and The Politics of Consciousness. The waxing and waning technologies, social institutions, and ideological beliefs reverberating through the social field create the environment within which the above described processes occur and to which they respond, and the above described processes, in turn, further modify that environment and, by doing so, affect the complementary processes of technological, ideological, and social institutional evolution. The ebbs and flows, expansions and contractions, of all aspects of the social institutional landscape, including technologies, ideologies, religions, norms, rituals, beliefs, and laws, are intertwined and mutually formative.
There are many portals of human intentionality into this system. In fact, it is comprised predominantly of human intentionality. Every act by every person either reproduces or slightly modifies some aspect of this dynamo. Human will and ingenuity insinuates itself in particularly salient ways in several fields, such as academe, writing (both fiction and non-fiction), and engineering. But, of all of these, there is something particularly important about politics, about how we exercise our will in the on-going refinement of the formal rules by which we intentionally provide a context for this all-encompassing human enterprise, a context which determines how robustly our imaginations are activated and their products realized. For it is through the political process that we consciously determine how well or poorly we manage to liberate The Genius of the Many, which is the most valuable of all human and natural resources.
I sometimes hear progressives saying “It’s time for us to get angry; it worked for the Tea Party.” It also defines the Tea Party, and is among the reasons I oppose the Tea Party. I’m not saying that there’s never cause for anger; I’m saying that it should never be allowed to define us.
Instead, we should define ourselves first, and act in the world in service to that ideal, rather than allow ourselves to be defined by our frustrations, by some negative reaction to the world around us. Let others be the chest-thumping mindless apes. Someone has to strive to be the sentient beings, who lead the way toward something better.
What does it take to be sentient beings? A commitment, a desire, a discipline, an endless hunger to grow and aspire and invite and attract others to do the same. Let others thrive on their calls to arms; let’s instead engage in a call to minds. Let’s instead engage in a call to hearts. Let’s instead engage in a call to souls. We have called enough to our baser nature; it’s time to call to our nobler one.
This may be getting repetitive, and for that I apologize. I enjoy, more than anything, to tease out some hidden insight, some novel perspective, some aspect of the dance of nature around and through us that is not obvious, but is worthy of attention. But some things are less delicate, less unfamiliar, but no less worthy of attention for being mundane.
One such thing is our need to move, in as organized and passionate a manner as possible, in the direction of becoming advocates for a discipline that can be more effective, on multiple dimensions, than the sham of activism in which we are, in general, now engaged.
Some may recognize that this isn’t the first time I’ve referred to social institutional shams. I used the phrase “Kabuki Theater” not long ago to describe professional development workshops in public education, which are largely rituals of signifying a commitment to doing better rather than engaging in the actual discipline of doing better. But it is not a defect relegated only to ossified bureaucracies; it is a defect also found in our most passionate social institutional rites. No, the faces are not impassive in the shams of activism, but the results are as hollow.
WE ARE ABLE TO DO BETTER!!!! I can’t emphasize that enough, or often enough. We can do better. Just as for millenia humanity exercised the power of the mind through the haphazard accumulation of cultural belief systems, finally stumbling upon a methodology that unleashed its powers in phenomenal new ways; just as there was a time when trials by ordeal were all the rage, giving way to systems of law whose procedural discipline seems excessive to those who don’t realize what a triumph it really is; so too can we do better in every sphere of life, in every aspect of our endeavors.
The value of discipline, of methodology, of procedure, is not a new discovery; it has been a hallmark of spiritual and philosophical schools throughout history. The quest for nirvana may seem trite today, but it is no less compelling, no less authentic, than it was two and a half thousand years ago. It is, in essence, some shade of nirvana that we seek, some spiritual success realized through our own ability to tame our egos and realize our full potential in the process.
We do not necessarily have to sit in the lotus position and chant “om mani padme hum” to be, in essence, exercising a discipline that liberates the human spirit. We can, instead, escape the illusion of activism that is blindly invested in a superficial cycle, the endless trials by ordeal, of changing leadership and representation, and embrace in its place the realization of an activism that is more profound, more effective, and more compelling.
I have already sketched out what that discipline looks like (see, e.g., A Proposal, The Ultimate Political Challenge, The Voice Beyond Extremes, The Foundational Progressive Agenda, “A Theory of Justice”, The Battle of Good v. Evil, Within & Without, The Battle of Good v. Evil, Part 2, and “Messaging” From The Heart of Many Rather Than The Mouth of Few). But words are cheap, and acting on them is essential. To those who are already involved in this effort (e.g., “the coffee party”), let’s form bridges among our groups, form new groups, draw in new members, link to groups that are somewhat different in nature (e.g., Kiwanas,Rotary, church groups, HOAs, PTAs, park districts, school districts, everyone who is organized to do good works of any kind), trying to transcend rather than deepen the ideological divides, trying to create common ground rather than merely to smite enemies (and by doing so ensure that they remain enemies), building more hubs and spokes in expanding social networks all coalescing around the will to do better.
There are those who are quick to say that the opposition is not reasonable, and that trying to reason with them is the mistake that they are so angry about. And I say, the world is subtler than that. I do not argue that there is no place for hardball politics; I only argue that not every place is that place. I do not argue that there are not irrational and intransigent ideologues opposed to progress; I only argue that not everyone across the ideological divide is such a person. The real political battle has always been, and remains, the battle over the middle, over those who are not raging ideologues, over those who can be swayed. Such people are not swayed, but rather are repulsed, by raging ideology. While the Tea Party may seem to have been successful by trying to sway them with contorted faces and angry slogans, what they really did was to coalesce a base, and alienate the middle, at exactly the same time that many on the left thought that the smartest thing to do would be to alienate the middle as well, and thus lose the opportunity to be the only attractive political force left.
Obama won not because there was a huge mandate for expansive government, but rather because there was a huge mandate for hope and reason. Not everyone defines those virtues in the same way, and not everyone stayed on board as the policies themselves involved more government involvement than they were comfortable with. But hope and reason, not rage, are the truly attractive forces, the ones that attract not those who are already full of rage, but rather those who are not and don’t want to be.
So let’s recover that force, that momentum, that Obama unleashed in 2008. Let’s recover a commitment to hope and reason. Let’s agree to be slower to refute and quicker to consider; let’s agree to strive to find the words and attitude that resonate with those who can be swayed. Let’s agree to be reasonable, and humble, people of goodwill, working together to do the best we can. And let’s make that an attractive place to be. Real, and sustainable, progress depends on it.
Contact me, here or by other channels, if you’d like to be a part of an effort to organize along these lines. All reasonable people of goodwill have a responsibility to work as hard at turning this vision into a reality as others, all across the political spectrum, work at obstructing it.